FWC seeks input on domestic violence leave clause

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FWC seeks input on domestic violence leave clause

The Fair Work Commission is seeking input on a new model clause on unpaid domestic violence leave for insertion into nearly all modern awards.

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The Fair Work Commission is seeking input on a new model clause on unpaid domestic violence leave for insertion into nearly all modern awards. 

Any comments must be on the topic of whether the draft model term (see below) accurately reflects the domestic violence decision of March 2018. 

In the March 2018 judgment it was determined that:
  • there is an entitlement to five days of domestic violence leave
  • domestic violence leave will be unpaid
  • will apply to all employees (including casuals)
  • will be available in full at the commencement of each 12 month period rather than accruing progressively during a year of service
  • will not accumulate from year to year
  • will be available in full to part-time and casual employees (i.e. not pro-rated)
  • employees will not be required to use any available paid leave entitlement before using unpaid domestic violence leave.
Interested parties can comment by email to amod@fwc.gov.au no later than 4pm Friday 1 June 2018. Any comments in reply should be filed by 4pm Friday 15 June 2018.

The commission states that a further mention/conference will be held on Thursday 21 June in Sydney at 9am. Requests for video conference are to be directed to chambers.ross.j@fwc.gov.au.

Further reading

Family and Domestic Violence Leave Clause - 3 May

Summary of the March 2018 decision

Full judgment – “4 yearly review of modern awards - Family & Domestic Violence Leave”

Leave to deal with Family and Domestic Violence: Model Term


X.1 This clause applies to all full time, part-time and casual employees.

X.2 Definitions

(a) In this clause:
 
family and domestic violence means violent, threatening or other abusive behaviour by a family member of an employee that seeks to coerce or control the employee and that causes them harm or to be fearful.
family member means:
 
(a) a spouse, de facto partner, child, parent, grandparent, grandchild or sibling of the employee; or
(b) a child, parent, grandparent, grandchild or sibling of a spouse or de facto partner of the employee; or
(c) a person related to the employee according to Aboriginal or Torres Strait Islander kinship rules.
(b) A reference to a spouse or de facto partner in the definition of family member in clause X.2(a) includes a former spouse or de facto partner.

X.3 Entitlement to unpaid leave

(a) Each year, an employee is entitled to five days’ unpaid leave to deal with family and domestic violence.
(b) The entitlement to five days’ unpaid leave to deal with family and domestic violence:
(i) is available in full at the start of each 12 month period of the employee’s employment; and
(ii) does not accumulate from year to year.
 
Note:

1. A period of leave to deal with family and domestic violence may be less than a day by agreement between the employee and the employer.
2. The employer and employee may agree that the employee may take more than five days’ unpaid leave to deal with family and domestic violence.

X.4 Taking unpaid leave

An employee may take unpaid leave to deal with family and domestic violence if the employee:

(a) is experiencing family and domestic violence; and
(b) needs to do something to deal with the impact of the family and domestic violence and it is impractical for the employee to do that thing outside their ordinary hours of work.

Note: The reasons for which an employee may take leave include making arrangements for their safety or the safety of a family member (including relocation), attending urgent court hearings, or accessing police services.

X.5 Service and continuity

The time an employee is on unpaid leave to deal with family and domestic violence does not count as service but does not break the employee’s continuity of service.

X.6 Notice and evidence requirements

(a) Notice

An employee must give their employer notice of the taking of leave by the employee under clause X.

(b) The notice:

(i) must be given to the employer as soon as practicable (which may be a time after the leave has started); and
(ii) must advise the employer of the period, or expected period, of the leave.

(c) Evidence
 
An employee who has given their employer notice of the taking of leave under clause X must, if required by the employer, give the employer evidence that would satisfy a reasonable person that the leave is taken for the purpose specified in clause X.4.

Note: Depending on the circumstances such evidence may include a document issued by the police service, a court or a family violence support service, or a statutory declaration.

X.7 Confidentiality

(a) Employers must take steps to ensure information concerning any notice an employee has given, or evidence an employee has provided under clause X.6 is treated confidentially, as far as it is reasonably practicable to do so.
(b) Nothing in clause X prevents an employer from disclosing information provided by an employee if the disclosure is required by an Australian law or is necessary to protect the life, health or safety of the employee or another person.

Note: Information concerning an employee’s experience of family and domestic violence is sensitive and if mishandled can have adverse consequences for the employee. Employers should consult with such employees regarding the handling of this information.

X.8 Compliance

An employee is not entitled to take leave under clause X unless the employee complies with clause X.
 
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